Systemic Racism in Canada

       Donald Marshall, Jr. was wrongfully convicted of a murder in 1971 and spent eleven years in prison. His case has become over the years a study in racism, and as Turpel (2000) writes, a profound example of “the inability of the Canadian legal and political system to recognize the distinct character of the Aboriginal peoples . . . [where] an entire political/historical relationship between two communities was compromised and ignored by government” (p. 322). 
        The Royal Commission Report was released into the prosecution of Marshall’s case, which involved evidence from two preliminary hearings, four trials, four appeals, and three Royal Commissions of Inquiry (Turpel, 2000, p. 322). This report was important in that it acknowledged racism against Aboriginal peoples in the Canadian criminal justice system, but it failed to create any real action at an official level (Turpel, 2000, p. 323). As Turpel (2000) writes, “the official recognition of different treatment in the criminal justice system for Donald Marshall, Jr. . . . was offered without cognizance of a broader definitional, ideological, cultural, and historical context for the presence of racism . . .” (p. 323); this omission was one of the fundamental failures of the report. Turpel (2000) sees it as a marked reluctance of Canadian officials to “look racism in the face,” ultimately creating only minor improvements in the justice system (p. 323). Most importantly, however, was the loss of a significant opportunity, in the case of the Donald Marshall, Jr. enquiry, to make radical changes to a failing criminal justice system. 
        The Canadian criminal justice system failed Donald Marshall, Jr. directly from the onset of the investigation. Turpel (2000) writes that a thorough investigation of the murder was never completed; Donald Marshall, Jr. was immediately considered by police to be the prime suspect, and his voluntary statements and assistance to the investigation were never taken seriously (p. 327). In the end, the Royal Commission ultimately found that “in Sydney’s white community at that time that Indians were not worth as much as whites” (Turpel, 2000, p. 327). The second major failing was by the Sergeant of Detectives at the time: in his desire to build a case against Marshall, he influenced witnesses, singled out Marshall immediately because he was Mi’kmaq, selected only the evidence that would convict Marshall, and left everything else out of the investigation (Turpel, 2000, p. 327). 
       The third major failing directed at Marshall was found in the entire legal system presiding over his case, which was utterly flawed. His very own council was incompetent, the Crown Prosecutor failed to discharge his duties adequately, and the judge himself failed to interpret evidence law correctly (Turpel, 2000, p. 327). But most importantly, these failings were ultimately found to be based in racism: the Marshall Commission found that “the fact that Donald Marshall, Jr. was Mi’kmaq evidently influenced the level of representation he received” (Turpel, 2000, p. 328). 
       The penultimate failing directed towards Donald Marshall, Jr., however, seems to have occurred even after he was acquitted for the crime he never committed, by placing the blame back onto Marshall’s shoulders for having been charged in the first place. Turpel (2000) writes that the Court of Appeal Justices found that “any miscarriage of justice . . . was more imagined than real, and that, in any event, he was responsible for any injustice done because he had lied and was attempting to commit a robbery on the night of the murder” (p. 330). Turpel (2000) goes on to say that these accusations fit perfectly with the racist stereotypes of Indians at the time, as “liars, thieves, drunks, in other words, “savages” (Turpel, 2000, p. 330). 
       At the end of the day, the Royal Commission found that two systems exist within the Canadian justice system, and by which system a person is judged is determined by status, wealth, and race; furthermore, at least in part because Marshall is Mi’kmaq, he became a “non-priority in the Canadian criminal justice system” (Turpel, 2000, p. 331). 
       The Royal Commission uncovered the stark truth in Canada that there exists clear and real systemic racism within the criminal justice system. They also went to lengths to create a list of recommendations that would specifically help to ameliorate the conditions of racism for Mi’kmaq people. Some of these recommendations are as follows: increase the number of Mi’kmaq in administrative positions, such as police officers, guards, etc., improve the legal aid system, provide cultural awareness training for people of authority, and greater access to legal education for Mi’kmaq (Turpel, 2000, p. 331). Ultimately, however, these recommendations would turn out to be another failing directed at Donald Marshall, Jr., as there were not even charges laid against the egregious actions of the officials in the case, nor were there any comments against the politicians’ inaction regarding their miscarriage of justice (Turpel, 2000, p. 331). 
       The Marshall Report was a success in that it finally found evidence to support systemic racism in Canada, but it utterly failed in addressing the underlying reasons for this racism, or in finding real solutions to combat the racism. Turpel (2000) writes that it was not because Marshall was Mi’kmaq that he was deemed to be a murderer, but instead, it was due to the underlying assumptions of what a Mi’kmaq is: inferior, unworthy, untrustworthy, a savage, a liar, and a thief. It means being a member of a sub-class” (p. 335). 
       One final failing of the criminal justice system in the Donald Marshall, Jr. case was the omission of an analysis of the Treaty of Peace and Friendship of 1752 into the final recommendations, which allowed for an “illegitimate and unilateral assumption of authority by Canada over a Mi’kmaw contrary to the Elekewaki Compact” (Turpel, 2000, p. 336). A further example of this flawed assumption of authority was the Native Criminal Court recommendation by the Commission, which ultimately revealed an extremely flawed and limited understanding of the roots of racism that exist in Canada, as well as what it might mean to impose yet another foreign system of justice upon the Mi’kmaq people (Turpel, 2000, p. 337).
       Ultimately, the recommendations by the Royal Commission were vague and very little was accomplished post-report; it “contains no recommendations aimed at sustaining or reinvigorating tribal structures or the cultural and social foundation of the Mi’kmaq community (Turpel, 2000, p. 338). The report utterly failed to decipher the historical reasons that caused the wrongful case, and instead offered up solutions “directed at perfecting a colonialist legal regime which is more the cause than the solution to the problem” (Turpel, 2000, p. 338). In the end, long after the murder, the arrest, the trials, the appeals, the acquittal, and the analysis, Donald Marshall, Jr. was still being failed by the Canadian justice system.
       To rectify these failures, the Aboriginal peoples of Canada must be granted the right to self determination. Turpel (2000) writes that until issues such as land claims, dispossession, human rights, dignity, and respect are tackled and won for the Aboriginal peoples of Canada, changes cannot be made (p. 339). Historical and contemporary racism must be studied, how and why it was created, and why it still exists in Canada must be understood for real change to occur; anything else is just another pat answer without any real or lasting results. 

References

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McGillivray, A., & Comaskey, B. (2000). “Everybody had black eyes”: Intimate violence, Aboriginals and the justice system [Chapter             3]. In Proulx, J., & Perrault, S. (Eds.), No place for violence: Canadian aboriginal alternatives (pp. 39–59). Halifax NS: Fernwood           Publishing and RESOLVE (Research and Education for Solutions to Violence and Abuse).
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Turpel, M.E. (Aki–Kwe) (2000). Further travails of Canada’s human rights record: The Marshall case [Chapter 14]. In Neugebauer, R.        (Ed). Criminal injustice: Racism in the criminal justice system (pp. 319–340).